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Judgment
I.S. Tiwana, J.—This order is directed against an order passed by the Additional District Judge, Ludhiana, on June 15, 1976, u/s 32(7) of the State Financial Corporations Act, 1951 (for short, the Act), by way of review of an earlier order dated April 6, 1976. Briefly the background of the case is as follows.
The respondent Corporation filed a claim petition u/s 31 of the Act against the appellant for the recovery of Rs. 77922.08 with interest as per the terms of the mortgage deed dated December 29, 1967 and in that the said Court granted the following relief:--
In view of the above, the petition is allowed and it is hereby directed that the property of the respondent described in para No. 2 of this judgment, mortgaged with the Corporation as security for the loan, shall be sold for the realisation of the amount of Rs. 99032.29 P. with interest upto 14-12-1975. The sale proceeds of the property shall be paid to the Corporation to satisfy the amount due to it as aforesaid until realisation together with incidental and miscellaneous expenses that may hereafter be deposited in the respondents loan account in terms of the mortgage deed. The petitioner will be entitled to the cost of the petition. The counsel fee is assessed at Rs. 550/-.
On review this relief was altered like this :
In view of the above the application is allowed. The judgment and decree dated 6-4-1976 is directed to be amended so as to read that the decree-holder will be entitled to interest from the J.D. from 15-12-1975 onwards till realisation. The corresponding charge shall be decreed to have been effected in the judgment and decree dated 6-4-1976 of this Court. This order will form part of the aforesaid judgment and decree.
The loanee appellant preferred an appeal (F.A.O. No. 167 of 1976) against the order dated April 6, 1976 and it was taken up for final hearing on February 9, 1984. During the course of hearing it came to the notice of this Court that as a matter of fact the order appealed against, i.e., dated April 6, 1976, had later been reviewed by the Additional District Judge on June 15, 1976, i.e., the presently impugned order, and therefore, the appeal against the original order dated April 6, 1976 was not competent. The same was dismissed as such. As a result of this the appellant secured a copy of the order dated June 15, 1976 and has preferred the present appeal. Along with this appeal an application u/s 5 of the Limitation Act has been filed for the condonation of the delay that has occurred in the filing of the same. The grounds pleaded in this application are that the appellant came to know of the order under appeal for the first time on February 9, 1984, i.e., during the course of the hearing of the earlier appeal (F.A.O. No. 167) and made an application for securing a certified copy of the order on the very next day, i.e., February 10, 1984 which though was prepared on March 21, 1984, yet was actually delivered to the appellant on March 29, 1984. Since the conditions in the State of Punjab, including the Union Territory of Chandigarh were disturbed and were in a State of turmoil and as a matter of fact the two towns, i.e., Khanna where the appellant is carrying on its business and Chandigarh, where the seat of the High Court is, were later placed under curfew from April 19,1984 to April 23, 1984, the appellant could not come to Chandigarh to file this appeal. It prays that the delay of three days in the filing of this appeal be condoned. No reply to this application has been tiled on behalf of the Corporation to contest the factual averments made therein. In view of that the same have obviously to be accepted as correct for purposes of this judgment.
The argument raised on behalf of the respondent No. 1 however, is that u/s 32(9) of the Act, the appeal could only be filed within 30 days from the date of the order and the appellant cannot seek the starting of limitation for the filing of this appeal from the date of knowledge of the order appealed against. The argument in a nutshell is that after the expiry of the statutory period of limitation of 30 days from the date of the order as specified in section 32(9) of the Act on July 15, 1976, the appellant has to explain each day''s delay thereafter and in the absence of any sufficient cause having been shown, the appellant is not entitled to the condonation of the delay prayed for. Mr. Sethi, learned counsel for the respondent Corporation, however, concedes that the provisions of section 5 of the Indian Limitation Act, 1963, do apply to the facts of this case.
Having given my thoughtful consideration to this aspect of the matter I do not find much weight in the stand of the learned counsel for the respondent. As has been pointed out above, the appellant had no knowledge of the impugned order till March 29, 1984, i.e., the day when it secured a certified copy of the impugned order. All that came to the knowledge of the appellant on February 9, 1984 during the course of hearing of F.A.O. No. 167 of 1976 was that the order assailed in that appeal had been reviewed. What were the contents and implications of the order passed after review were not to the knowledge of the appellant nor could the same possibly be till it secured a copy of the order. Though it is conceded in the application that subsequent to the securing of this copy of the order, the appellant for the first time talked about the same or the filing of the appeal with his counsel on telephone on April 18, 1984 and thereafter the appeal was actually filed on April 24, 1984, yet the uncontroverted stand in the application is that during those days "there was disturbed state of affairs and tension in Khanna where the petitioner lives and also in Chandigarh due to curfew and normal life stood paralised". It is also maintained in this application that the appellant could not come to Chandigarh during those days because of disturbances and reasons beyond its control. It was only on April 23, 1984 that the appellant was able to contact its counsel, Mr. Palli and the appeal was filed on the very next day, i.e., April 24, 1984. It is well known that the expression "sufficient cause" occurring in section 5 of the Limitation Act, calls for a liberal construction so as to advance the cause of substantial justice. This is more so when no want of bona fides is attributable to a party. In the light of the facts stated above which, as already pointed out, are not controverted, I feel satisfied that there was no lack of bona fides on the part of the appellant to challenge the impugned order at the earliest possible time. As a matter of fact it had already filed an appeal (F.A.O. No. 167 of 1976) against the original order of the District Judge dated April 6, 1976 but that appeal had been rendered infructuous because of the review of that order by the said Court. This the anxiety of the appellant to assail the order passed against it u/s 32(7) of the Act is well established on record. In the light of that I allow Civil Misc, Application No. 2472-CII of 1984 and condone the delay in the filing of this appeal.
So far as the merits of the appeal are concerned I again find that the appellant deserves to succeed. The impugned order, as already pointed out, was passed by way of review of the earlier order dated April 6, 1976. The stand of the appellant is that it was neither served with any notice nor any hearing was afforded to it prior to the passing of the impugned order. As against this, the stand of the respondent Corporation is that after the filing of the review petition by it, the District Judge did issue a notice to the Advocate who was conducting the proceedings on behalf of the appellant prior to the passing of the order dated April 6, 1976, but the said Advocate refused to accept the notice and he even made an endorsement to that effect on the summons. It is again the conceded position that this notice had been served on the said Advocate for June 14, 1976 and as a matter of fact the case was not taken up for hearing on that day. As the Presiding Officer was not feeling well, it was only on the next day, i.e-, June 15, 1976 that the Court thought it proper to review its earlier order even in the absence of the appellant and passed the impugned order on that day. In the light of the above noted facts it is patent that there was no proper service on the appellant. Rules 10 and 12 of Order 5 of the CPC lay down the mode and method of service of the summons. As per these rules, the service has to be effected on the person concerned in person when practicable and that too by tendering a copy of the summons to him. Admittedly no such procedure was adopted by the District Judge before passing the impugned order. He only chose to serve the counsel who was conducting the proceedings on behalf of the appellant at some stage. It has, therefore, to be held that prior to the passing of the impugned order, no opportunity of hearing was afforded to the appellant and on that account the order under appeal has essentially to be set aside.
In the light of the discussion above I allow this appeal and while setting aside the impugned order dated June 15, 1976, send the case back to the District Judge Ludhiana for disposal in accordance with law and the observations made above. The parties through their counsel are directed to appear before him on December 20, 1985. Since the matter has lingered on for a petty long, he is further directed to dispose it of at the earliest, if possible within three months thereafter. No costs.